Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases The senior operator acknowledged that he asked the worker if he was having Chinese food for lunch, but he denied that he used the word "stinky" and claimed he told the worker that it smelled good. He said he was eating Indian food that day and was trying to be friendly by discussing their lunches and he didn't see any indication that the worker was upset over their conversation. The next morning, the senior operator told the worker to clean up a wastewater flood. The worker asked for rain boots to wear on the job, but the senior operator refused his request. The worker complained to Terrapure upper man- agement, who investigated and determined that the denial of rain boots for the wastewater cleanup was improper. The senior operator was suspended for one day without pay. The same day — July 25 — the branch man- ager who had hired the worker called a meeting with the worker. The worker claimed that, at the meeting, the branch manager told the worker that Terrapure had lost a contract and didn't have any more work for him. As a result, the company no longer needed his services. The worker filed a human rights complaint alleging he was harassed at work by the senior operator because of his Chinese ancestry — adding that the senior operator was friendly with white truck drivers but rude to him — and that Terrapure discriminated against him be- cause his race was a factor in his termination. Terrapure disputed the worker's claim, pointing to the senior operator's account of the lunchroom interaction as evidence there was no harassment in the workplace. It also denied the worker's race played any role in his termina- tion — it agreed that the worker was told his services were no longer needed, but this was because the worker was still on his probation- ary period and the company had determined he was not the right fit. The company's normal practice was to not give employees a reason for termination when the termination was without cause and it said that the worker "did not meet Terrapure's performance and safety expecta- tions and his employment was accordingly terminated." The company argued there was no evidence linking the worker's race with its decision to terminate his employment and applied to the tribunal to have the complaint dismissed. In addition, it denied that the branch manager mentioned the loss of a contract as a reason for dismissal, as such information was confiden- tial and the branch manager would not have shared it with a dismissed employee, the com- pany argued. The tribunal noted that for it to dismiss the worker's complaint, Terrapure had to show that the worker had no reasonable prospect of proving that he was treated adversely because of his race. In addition, the worker didn't have to prove that his race was the main reason for his termination and treatment at work but only a factor. The tribunal also commented that "discrimi- nation on the basis of race is usually subtle and will often have to be proven by inference" as di- rect evidence of racial discrimination was often hard to obtain. However, while there was often evidence of "the possibility of discrimination" when someone who is part of a minority group was involved, there must be more than a "mere possibility" to warrant a human rights hearing. The tribunal found that while the worker complained his termination was discriminato- ry because of his race, he provided no evidence related to his termination. His only evidence related to his race concerned his interactions with the senior operator — who had no role in the decision to terminate the worker's employ- ment. It was the branch manager who hired the worker and made the decision to dismiss the worker. Regarding the decision to terminate the worker's employment, the tribunal found that Terrapure was consistent in its reason. The worker was on his probationary period, during which his ability to do his job was being evalu- ated. The branch manager told the worker his services were no longer needed, which it was entitled to do for a probationary period. Be- cause it was a without-cause termination, there was no obligation to provide another reason, said the tribunal. The tribunal also noted that the branch manager knew the worker was of Chinese background when he hired him, so it didn't re- ally make sense that he would dismiss him one month later because he was Chinese. In addi- tion, the worker didn't provide an explanation why this would be the case. As for the worker's interactions with the se- nior operator, his claim that the senior operator was friendly to other truck drivers and rude to him was a broad allegation and the worker pro- vided no details. The tribunal dismissed this claim as "speculative." Regarding the lunchroom interaction, the tribunal found that if the senior operator made the "stinky" comment, it alone didn't amount to discrimination under the B.C. Human Rights Code. It wasn't "egregious or virulent" nor did it "communicate a message that [the worker] is less worthy of respect or dignity because of his Chinese ancestry" by itself. At most, the incident indicated the senior operator didn't like the smell of the worker's lunch. It was not enough to show harassment based on race, said the tribunal. "Given its relatively benign nature, that it happened on only one occasion, that it was not accompanied by any other adverse conse- quences for [the worker], and that [the worker] did not complain about it at the time, I can- not conclude that it is a comment capable of amounting to discrimination contrary to... the code," the tribunal said in dismissing the com- plaint. For more information, see: • Terrapure Environmental and another, 2019 BCHRT 51 (B.C. Human Rights Trib.). « from RACE NOT A FACTOR on page 1 Supervisor's comment about Chinese food discriminatory: Worker CREDIT: WAVEBREAKMEDIA iSTOCK

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